THIRD DIVISION

[G.R. No. 122308. July 8, 1997]

PURITA S. MAPA, CARMINA S. MAPA and CORNELIO P. MAPA, petitioners, vs. COURT OF
APPEALS and TRANS-WORLD AIRLINES INC., respondents.

DECISION

DAVIDE, JR., J.:

The main issue in this petition for review under Rule 45 of the Rules of Court is the applicability of Article
28(1) of the Warsaw Convention, which provides as follows:

ARTICLE 28. (1) An action for damages must be brought, at the option of the plaintiff, in the territory of one
of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of
business, or where he has a place of business through which the contract has been made, or before the court at
the place of destination.

We are urged by the petitioners to reverse the 31 May 1995 Decision of the Court of Appeals in CA-G.R. CV
No. 39896 affirming the 24 July 1992 Order of the Regional Trial Court of Quezon City, Branch 102, which
dismissed Civil Case No. Q-91-9620 on the ground of lack of jurisdiction in view of the aforementioned Article
28(1) of the Warsaw Convention.

The antecedent facts, as summarized by the Court of Appeals, are as follows:

Plaintiffs Cornelio P. Mapa and Purita S. Mapa are respectable members of the society. Mr. Mapa is an
established businessman and currently the Regional General Manager of Akerlund and Rausing, a multinational
packaging material manufacturer based in Manila. He was previously the Senior Vice President of Phimco
Industries, an affiliate company of Swedish Match Company. Mrs. Mapa is a successful businesswoman
engaged in the commercial transactions of high value antique and oriental arts decor items originating from
Asian countries. Carmina S. Mapa is the daughter of plaintiffs Purita and Cornelio and is a graduate of the
International School in Bangkok, Thailand, now presently enrolled at the Boston University where she is
majoring in communication.

Plaintiffs Mapa entered into contract of air transportation with defendant TWA as evidenced by TWA ticket
Nos. 015:9475:153:304 and 015:9475:153:305, purchased in Bangkok, Thailand. Said TWA tickets are for Los
Angeles-New York-Boston-St. Louis-Chicago ....

Domicile of carrier TWA is Kansas City, Missouri, USA. Its principal place of business is Kansas City,
Missouri, USA. TWA’s place of business through which the contracts were made is Bangkok, Thailand. The
place of destination is Chicago, USA.

On August 10, 1990, plaintiffs Carmina and Purita left Manila on board PAL flight No. 104 for Los Angeles.
Carmina was to commence schooling and thus was accompanied by Purita to assist her in settling down at the
University.

They arrived in Los Angeles on the same date and stayed there until August 14, 1990 when they left for New
York City.
On August 14, 1990, plaintiffs Purita and Carmina S. Mapa arrived at the John F. Kennedy (JFK) Airport, New
York, on TWA Flight No. 904.

On August 27, 1990, plaintiffs Purita and Carmina S. Mapa departed for Boston, taking a connecting flight on
TWA’s carrier, TW 0901, from JFK Airport, New York, to Boston’s Logan Airport, checking in seven (7)
pieces of luggage at the TWA counter in the JFK Airport. The seven baggages were received by a porter who
issued seven TWA baggage receipts numbered 17-8270, 71, 72, 73, 74, 75, and 76 therefor.

From the entrance gate of the terminal building, plaintiffs Purita and Carmina proceeded to TWA’s ticket
counter and presented their confirmed TWA tickets numbered 015:9475:153:304 and 015:9475:153:305 with a
3:00 p.m. departure time. They were issued their boarding passes and were instructed to proceed to gate 35 for
boarding. At about 2:40 p.m., plaintiffs noticed that there was still no instruction to board the aircraft so they
made inquiries. The TWA ground stewardess informed plaintiffs that they were at the wrong gate because their
flight was boarding at gate 1. Upon hearing this, plaintiffs rushed to gate 1 which was in another building
terminal. At gate 1, they were told by a TWA ground stewardess that flight 901 had just departed. However,
they were consoled that another TWA flight was leaving for Boston after 30 minutes and plaintiffs could use the
same boarding pass for the next flight. At around 3:15 p.m., plaintiffs Purita and Carmina were able to board
the next flight. However, the plane was not immediately cleared for take off on account of a thunderstorm. The
passengers were instructed to stay inside the aircraft until 6:00 p.m. when the plane finally left for Boston.

Upon arriving in Boston, plaintiffs Purita and Carmina proceeded to the carousel to claim their baggages and
found only three out of the seven they checked in, to wit: one Samsonite on the carousel, another Samsonite
lying on the floor near the carousel and a third baggage, an American Tourister, inside the unclaimed baggage
office. Plaintiffs immediately reported the loss of their four baggages to the TWA Baggage Office at Logan
Airport. TWA’s representative confidently assured them that their baggages would be located within 24 hours
and not more than 48 hours.

On September 2, 1990, plaintiffs received a letter from TWA, signed by Mr. J.A. Butler, Customer Relations-
Baggage Service, apologizing for TWA’s failure to locate the missing luggage and requesting plaintiffs to
accomplish a passenger property questionnaire to facilitate a further intensive and computerized search for the
lost luggage. Plaintiffs duly accomplished the passenger property questionnaire, taking pains to write down in
detail the contents of each missing baggage. The total value of the lost items amounted to $11, 283.79.

On September 20, 1990, plaintiffs’ counsel wrote TWA thru its General Sales Manager in the Philippines,
Daniel Tuason, with office address at Ground Floor, Saville Building, Sen. Gil J. Puyat Avenue corner Paseo de
Roxas, Makati, Metro Manila demanding indemnification for the grave damage and injury suffered by the
plaintiffs.

TWA again assured plaintiffs that intensive search was being conducted.

On October 8, 1990, TWA offered to amicably settle the case by giving plaintiffs-appellants two options: (a)
transportation credit for future TWA travel or (b) cash settlement. Five months lapsed without any result on
TWA’s intensive search.

On January 3, 1991, plaintiffs-appellants opted for transportation credit for future TWA travel.

On January 11, 1991, TWA disregarded plaintiffs’ option and unilaterally declared the payment of $2,560.00 as
constituting full satisfaction of the plaintiffs’ claim.

On July 19, 1991, plaintiffs accepted the check for $2,560.00, as partial payment for the actual cost of their lost
baggages and their contents.
Despite demands by plaintiffs, TWA failed and refused without just cause to indemnify and redress plaintiffs
for the grave injury and damages they have suffered.

Purita S. Mapa, Carmina S. Mapa, and Cornelio P. Mapa (herein petitioners) then filed with the trial court on 1
August 1991 a complaint for damages, which was docketed as Civil Case No. Q-91-9620. Before a responsive
pleading was filed, the petitioners filed an Amended Complaint. They prayed that after due trial private
respondent Trans-World Airlines, Inc. (hereafter, TWA), be ordered to pay them the following amounts: (1)
US$8,723.79, or its equivalent in Philippine currency, representing the cost of the lost luggage and its contents;
(2) US$2,949.50, or its equivalent in Philippine currency, representing the cost of hotel, board and lodging, and
communication expenses; (3) P1 million, by way of moral damages; (4) P1 million, by way of exemplary
damages, with legal interest on said amounts from the date of extrajudicial demand thereof; and (5)
P500,000.00 as attorney's fees, costs of the suit, and other expenses of litigation.

On 26 February 1992, TWA filed its Answer to the Amended Complaint raising, as special and affirmative
defense, lack of jurisdiction of Philippine courts over the action for damages in that pursuant to Article 28(1) of
the Warsaw Convention, the action could only be brought either in Bangkok where the contract was entered
into, or in Boston which was the place of destination, or in Kansas City which is the carrier's domicile and
principal place of business.

TWA further alleged that pursuant to the Warsaw Convention and the Notice of Baggage Limitations at the
back of the tickets, its liability to the petitioners is limited to US$9.07 per pound, or US$20.00 per kilo, which is
in lieu of actual and compensatory damages. Even assuming that petitioners’ bag weighed the maximum
acceptable weight of 70 pounds, TWA’s maximum liability is $640.00 per bag or $2,560.00 for the four pieces
of baggage, which the petitioners have been offered and have accepted. TWA also submitted that it could not
be liable for moral and exemplary damages and attorney’s fees because it did not act in a wanton, fraudulent,
reckless, oppressive, or malevolent manner.

On 7 February 1992, the petitioners filed their second Amended Complaint to include a claim of US$2,500, or
its equivalent in Philippine Currency, representing the additional replacement cost of the items and personal
effects contained in their lost luggage; and US$4,500 representing the travel expenses, hotel, lodging, food and
other expenses of petitioner Cornelio Mapa, who was constrained to join his family in Boston to extend the
necessary assistance in connection with the lost luggage.

After the filing of TWA’s Answer to the second Amended Complaint, and petitioners’ Reply thereto, the trial
court gave TWA ten days within which to submit a memorandum in support of its affirmative defenses; after
which the incident would be deemed submitted for resolution. However, after TWA filed its Memorandum, the
trial court gave the petitioners five days within which to file a reply memorandum; and TWA, two days from
receipt of the latter to file its comment thereon. The petitioners then filed their Opposition (by way of Reply
Memorandum) to which TWA filed a Reply. Thereafter, the petitioners submitted a Rejoinder; TWA, a
Surrejoinder.

On 24 July 1992, the trial court issued an Order dismissing the case for lack of jurisdiction in light of Article
28(1) of the Warsaw Convention. Thus:

It is plaintiffs' theory that the Warsaw Convention does not apply to the instant case because plaintiffs' contract
of transportation does not constitute "international transportation" as defined in said convention. This however
is belied by the Passenger Property Questionnaire which is Annex C of plaintiffs' amended complaint. Page
two of said questionnaire accomplished by plaintiffs under the heading "Your Complete Itinerary" shows that
the TWA tickets issued to the plaintiffs form part of the contract of transportation to be performed from Manila
to the United States. Since the Philippines and the United States are parties to the convention, plaintiffs'
contracts of transportation come within the meaning of International Transportation.
 ...

On the basis of the foregoing, the Court holds that the Warsaw Convention is applicable to the case at bar, even
if the basis of plaintiffs' present action is breach of contract of carriage under the New Civil Code.

The next question to be resolved is whether or not the Court has jurisdiction to try the present case in the light
of the provision of Art. 28(1) above-quoted.

Under Art. 28(1) supra, a complaint for damages against an air carrier can be instituted only in any of the
following places/courts:

(1) The court of the domicile of the carrier;

(2) The court of its principal place of business;

(3) The court where it has a place of business through which the contract had been made;

(4) The court of the place of destination.

In interpreting the provision of Art. 28(1) of the Warsaw Convention, the Supreme Court in the same case of
Augusto Benedicto Santos vs. Northwest Airlines held:

"Whether Article 28(1) refers to jurisdiction or only to venue is a question over which authorities are sharply
divided. While the petitioner cites several cases holding that Article 28(1) refers to venue rather that
jurisdiction, there are later cases cited by the private respondent supporting the conclusion that the provision is
jurisdictional.

Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by consent or waiver
upon a court which otherwise would have no jurisdiction over the subject-matter of an action; but the venue of
an action as fixed by statute may be changed by the consent of the parties and an objection that the plaintiff
brought his suit in the wrong country may be waived by the failure of the defendant to make a timely objection.
In either case, the court may render a valid judgment. Rules as to jurisdiction can never be left to the consent or
agreement of the parties, whether or not a prohibition exists against their alteration.

A number of reasons tends to support the characterization of Article 28(1) as a jurisdiction and not a venue
provision. First, the wording of Article 32, which indicates the places where the action for damages "must" be
brought, underscores the mandatory nature of Article 28(1). Second, this characterization is consistent with one
of the objectives of the Convention, which is to "regulate in a uniform manner the conditions of international
transportation by air." Third, the Convention does not contain any provision prescribing rules of jurisdiction
other than Article 28(1), which means that the phrase "rules as to jurisdiction" used in Article 32 must refer only
to Article 28(1). In fact, the last sentence of Article 32 specifically deals with the exclusive enumeration in
Article 28(1) as "jurisdictions," which, as such, cannot be left to the will of the parties regardless of the time
when the damage occurred.”

...

It has been shown by the defendant that the domicile of the defendant Trans World Airlines, Inc. is Kansas City,
Missouri, its principal place of business is also in Kansas City, Missouri, the carrier's place of business through
which the contracts were made is Bangkok (Annexes A and A-1, Amended Complaint), and the place of
destination was Boston.
The Philippines not being one of the places specified in Art. 28(1) above-quoted where the complaint may be
instituted, this Court therefore, does not have jurisdiction over the present case.

Evidently discontented with the trial court's order, the petitioners appealed to the Court of Appeals, contending
that the lower court erred in not holding that (1) it has jurisdiction over the instant case and (2) the Warsaw
Convention is inapplicable in the instant case because the subject matter of the case is not included within the
coverage of the said convention. They claimed that their cause of action could be based on breach of contract of
air carriage founded on Articles 1733, 1734, 1735, 1755, and 1756 of the New Civil Code governing common
carriers or Article 2176 of the same Code governing tort or quasi-delict.

The appellate court disagreed with the petitioners and affirmed the order of the trial court. It held that the
Warsaw Convention is the law which governs the dispute between the petitioners and TWA because what is
involved is international transportation defined by said Convention in Article I(2). This holding is founded on
its determination that the two TWA tickets for Los Angeles-New York-Boston-St. Louis-Chicago purchased in
Bangkok, Thailand, were issued in conjunction with, and therefore formed part of, the contract of
transportation performed from Manila, Philippines, to the United States.

The respondent court further held that the cause of action of the petitioners arose from the loss of the four
checked pieces of baggage, which then falls under Article 18(1), Chapter III (Liability of the Carrier) of the
Warsaw Convention. Pursuant to Article 24(1) of the Convention, all actions for damages, whether based on
tort, code law or common law, arising from loss of baggage under Article 18 of the Warsaw Convention, can
only be brought subject to the conditions and limits set forth in the Warsaw Convention. Article 28(1) thereof
sets forth conditions and limits in that the action for damages may be instituted only in the territory of one of the
High Contracting Parties, before the court of (1) the domicile of the carrier, (2) the carrier’s principal place of
business, (3) the place of business through which the contract has been made, or (4) the place of destination.
Since the Philippines is not one of these places, a Philippine Court, like the RTC, has no jurisdiction over the
complaint for damages.

Respondent Court of Appeals likewise held that the petitioners could not claim application of Articles 1733,
1734, 1735, 1755, and 1756 of the New Civil Code on common carriers without taking into consideration
Article 1753 of the same Code, which provides that the law of the country to which the goods are to be
transported shall govern the liability of the common carrier for their loss, destruction, or deterioration. Since
the country of ultimate destination is Chicago, the law of Chicago shall govern the liability of TWA for the loss
of the four pieces of baggage. Neither is Article 2176 of the New Civil Code on torts or quasi-delicts applicable
in view of the private international law principle of lex loci delicti commissi. In addition, comformably with
Santos III v. Northwest Orient Airlines, mere allegation of willful misconduct resulting in a tort is insufficient to
exclude the case from the comprehension of the Warsaw Convention.

Failing in their bid to reconsider the decision, the petitioners filed this petition. They aver that respondent Court
of Appeals gravely erred (1) in holding that the Warsaw Convention is applicable to this case and (2) in
applying Article 1753 of the Civil Code and the principle of lex loci delicti commissi.

We resolved to give due course to the petition after the filing by TWA of its Comment on the petition and noted
without action for the reasons stated in the resolution of 25 September 1996 petitioners’ Reply and Rejoinder.
We then required the parties to submit their respective memoranda. They did in due time.

The petitioners insist that the Warsaw Convention is not applicable to their case because the contracts they had
with TWA did not involve an international transportation. Whether the contracts were of international
transportation is to be solely determined from the TWA tickets issued to them in Bangkok, Thailand, which
showed that their itinerary was Los Angeles-New York-Boston-St. Louis-Chicago. Accordingly, since the
place of departure (Los Angeles) and the place of destination (Chicago) are both within the territory of one High
Contracting Party, with no agreed stopping place in a territory subject to the sovereignty, mandate, suzerainty or
authority of another Power, the contracts did not constitute ‘international transportation’ as defined by the
convention. They also claim to be without legal basis the contention of TWA that their transportation contracts
were of international character because of the handwritten notations in the tickets re “INT’L TKT #079-
4402956821-2” and “INT’L TKT #079-4402956819.” Notwithstanding such notations, the TWA tickets, viz.,
(a) No. 015.9475:153:304 and (b) No. 015:9475:153:305 did not cease to be for the itinerary therein
designated. Besides, it is a fact that petitioners Purita and Carmina Mapa traveled from Manila to Los Angeles
via Philippine Airlines (PAL) by virtue of PAL tickets issued independently of the TWA tickets.

The pith issue to be resolved under the petitioners’ first assigned error is whether the contracts of transportation
between Purita and Carmina Mapa, on the one hand, and TWA, on the other, were contracts of “international
transportation” under the Warsaw Convention. If they were, then we should sustain the trial court and the Court
of Appeals in light of our ruling in Santos v. Northwest Orient Airlines. It appears clear to us that TWA itself,
the trial court, and the Court of Appeals impliedly admit that if the sole basis were the two TWA tickets for Los
Angeles-New York-Boston-St. Louis-Chicago, the contracts cannot be brought within the term “international
transportation,” as defined in Article I(2) of the Warsaw Convention. As provided therein, a contract is one of
international transportation only if

according to the contract made by the parties, the place of departure and the place of destination, whether or not
there be a break in the transportation or a transshipment, are situated either within the territories of two High
Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping
place within a territory subject to the sovereignty, mandate or authority of another power, even though that
power is not a party to this convention.

There are then two categories of international transportation, viz., (1) that where the place of departure and the
place of destination are situated within the territories of two High Contracting Parties regardless of whether or
not there be a break in the transportation or a transshipment; and (2) that where the place of departure and the
place of destination are within the territory of a single High Contracting Party if there is an agreed stopping
place within a territory subject to the sovereignty, mandate, or authority of another power, even though the
power is not a party to the Convention.

The High Contracting Parties referred to in the Convention are the signatories thereto and those which
subsequently adhered to it. In the case of the Philippines, the Convention was concurred in by the Senate,
through Resolution No. 19, on 16 May 1950. The Philippine instrument of accession was signed by President
Elpidio Quirino on 13 October 1950 and was deposited with the Polish Government on 9 November 1950. The
Convention became applicable to the Philippines on 9 February 1951. Then, on 23 September 1955, President
Ramon Magsaysay issued Proclamation No. 201, declaring the Philippines’ formal adherence thereto, “to the
end that the same and every article and clause thereof may be observed and fulfilled in good faith by the
Republic of the Philippines and the citizens thereof.

The contracts of transportation in this case are evidenced by the two TWA tickets, No. 015:9475:153:304 and
No. 015:9475:153:305, both purchased and issued in Bangkok, Thailand. On the basis alone of the provisions
therein, it is obvious that the place of departure and the place of destination are all in the territory of the United
States, or of a single High Contracting Party. The contracts, therefore, cannot come within the purview of the
first category of international transportation. Neither can it be under the second category since there was NO
agreed stopping place within a territory subject to the sovereignty, mandate, or authority of another power.

The only way to bring the contracts between Purita and Carmina Mapa, on the one hand, and TWA, on the
other, within the first category of “international transportation” is to link them with, or to make them an integral
part of, the Manila-Los Angeles travel of Purita and Carmina through PAL aircraft. The “linkages” which have
been pointed out by the TWA, the trial court, and the Court of Appeals are (1) the handwritten notations, viz.,
INT’L TKT # 079-4402956821-2 and INT’L TKT # 079-4402956819, on the two TWA tickets; and (2) the
entries made by petitioners Purita and Carmina Mapa in column YOUR COMPLETE ITINERARY in TWA’s
Passenger Property Questionnaire, wherein they mentioned their travel from Manila to Los Angeles in flight PR
102.

The alleged “international tickets” mentioned in the notations in conjunction with which the two TWA tickets
were issued were not presented. Clearly then, there is at all no factual basis of the finding that the TWA tickets
were issued in conjunction with the international tickets, which are even, at least as of now, non-existent.

As regards the petitioners’ entry in YOUR COMPLETE ITINERARY column of the Passenger Property
Questionnaire wherein they included the Manila-Los Angeles travel, it must be pointed out that this was made
on 4 September 1990 by petitioners Purita and Carmina Mapa, and only in connection with their claim for their
lost pieces of baggage. The loss occurred much earlier, or on 27 August 1990. The entry can by no means be
considered as a part of, or supplement to, their contracts of transportation evidenced by the TWA tickets which
covered transportation within the United States only.

It must be underscored that the first category of international transportation under the Warsaw Convention is
based on “the contract made by the parties.” TWA does not claim that the Manila-Los Angeles contracts of
transportation which brought Purita and Carmina to Los Angeles were also its contracts. It does not deny the
assertion of the petitioners that those contracts were independent of the TWA tickets issued in Bangkok,
Thailand. No evidence was offered that TWA and PAL had an agreement concerning transportation of
passengers from points of departures not served with aircrafts of one or the other. There could have been no
difficulty for such agreement, since TWA admitted without qualification in paragraph 1 of its Answer to the
second Amended Complaint the allegation in paragraph 1.1 of the latter that TWA “is a foreign corporation
licensed to do business in the Philippines with office address at Ground Floor, Saville Building, Sen. Gil. J.
Puyat Avenue, corner Paseo de Roxas, Makati, Metro Manila.”

TWA relies on Article I(3) of the Convention, which provides as follows:

3. A carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention,
to be one undivided carriage, if it has been regarded by the parties as a single operation, whether it had been
agreed upon under the form of a single contract or of a series of contracts, and it shall not lose its international
character merely because one contract or a series of contracts is to be performed entirely within a territory
subject to the sovereignty, suzerainty, mandate, or authority of the same High Contracting Party.

It also points to Article 15 of the IATA Recommend Practice 1724, which provides: Carriage to be performed
by several successive carriers under one ticket, or under a ticket and any conjunction ticket issued in connection
therewith, is regarded as a single operation.”

The flaw of respondents’ position is the presumption that the parties have “regarded” as an “undivided carriage”
or as a “single operation” the carriage from Manila to Los Angeles through PAL then to New York-Boston- St.
Louis-Chicago through TWA. The dismissal then of the second Amended Complaint by the trial court and the
Court of Appeals’ affirmance of the dismissal were not based on indubitable facts or grounds, but on inferences
without established factual basis.

TWA should have offered evidence for its affirmative defenses at the preliminary hearing therefor. Section 5 of
Rule 16 of the Rules of Court expressly provides:

SEC. 5. Pleading grounds as affirmative defenses. -- Any of the grounds for dismissal provided for in this rule,
except improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had
thereon as if a motion to dismiss had been filed.
Without any further evidence as earlier discussed, the trial court should have denied the affirmative defense of
lack of jurisdiction because it did not appear to be indubitable. Section 3 of Rule 16 of the Rules of Court
provides:

SEC. 3. Hearing and order. -- After hearing the court may deny or grant the motion or allow amendment of
pleading, or may defer the hearing and determination of the motion until the trial if the ground alleged therein
does not appear to be indubitable.

WHEREFORE, the instant petition is GRANTED and the challenged decision of 31 May 1995 of respondent
Court of Appeals in CA-G.R. CV No. 39896, as well as the Order of 24 July 1992 of the Regional Trial Court
of Quezon City, Branch 102, in Civil Case No. Q-91-9620, is REVERSED and SET ASIDE.

The Regional Trial Court of Quezon City, Branch 102, is hereby DIRECTED to proceed with the pre-trial, if it
has not been terminated, and with the trial on the merits of the case and then to render judgment thereon, taking
into account the foregoing observations on the issue of jurisdiction.

SO ORDERED.